BERKELEY / School district sued over racial policy

Published 4:00 am, Thursday, October 5, 2006

For the second time in three years, Berkeley school officials face a legal assault against the district's use of race in assigning students to schools.

The Pacific Legal Foundation filed a suit Wednesday to coincide with the 10th anniversary of Proposition 209, the voter-approved measure banning racial preferences in public university admissions and in state hiring.

The district won the first time, with an Alameda County Superior Court judge ruling the measure approved by voters in November 1996 didn't apply to Berkeley's policy.

The new case, also filed in Alameda County Superior Court, pits the nonprofit American Civil Rights Foundation against the district, school board and Superintendent Michele Lawrence. The foundation asserts that the district's policy violates the law despite its best intentions to integrate schools.

"Color-coding amounts to racial discrimination," said Paul Beard, a Pacific Legal Foundation attorney. "Telling students that race is what defines them is a harmful lesson for schools to teach and an illegal practice for them to follow."

Beard said the previous lawsuit was not appealed because the plaintiff -- a parent -- moved out of the district.

The lawsuit filed Wednesday is not a do-over of the previous case, Beard added. Since then, Berkeley has modified its school assignment system to include other factors besides race. That means this is a new suit with a new plaintiff against a new system, Beard added, albeit one still about race.

Berkeley's current system divides the city into three sections, each running from the Bay to the hills. Students are assigned to schools within their section based on a complicated formula that includes race, parent income and parent education level. Families can select up to three top school choices within their area. About 85 percent of families get their first choice, Lawrence said.

The goal is to make each school's student population reflect the overall racial makeup of the city, she said, adding that goal has been met. Within the district, 29 percent of students are white, 31 percent African American, 17 percent Hispanic, 7 percent Asian American and 15 percent a combination of others. "What we have found is our program is not only bringing kids of various races together, it also brings socio-economic levels together and children from various educational backgrounds together," Lawrence said, adding that it "creates a very healthy learning environment."

In the 2003 lawsuit, Judge James Richman sided with the district, saying Prop. 209 does not specifically prohibit voluntary desegregation plans or "race-conscious" school assignment systems.

"We've been monitoring Berkeley for some time now," Beard said. "It so happened we had the 10th anniversary in order to highlight there's still some work to be done," Beard said of the timing of the suit.

"We're still finding a lot of public officials who fail to follow Prop. 209 unless they're called to the carpet," she said, adding there are ongoing lawsuits against Los Angeles and Capistrano school districts. "Those are only the tips of the iceberg, we're sure," she said.

Within the next couple of months, San Francisco public schools could be among those using race to decide where students attend.

The school board is considering adding race into San Francisco's current assignment system, which takes family income and other factors into consideration.

The current system, which ceased using race in 1999, has dramatically increased segregation in city schools -- a situation the majority of school board members say must be addressed. Most of the seven current board members have said they don't see any other way to do that without including race in the assignment formula.

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In the meantime, the U.S. Supreme Court is considering two cases out of Seattle and Louisville, Ky., addressing the use of race in assigning students. Districts across California and the nation are watching those cases, which revolve around discrimination and the constitutional issue of equal protection.

Oral arguments in those cases will be heard Dec. 4 with a decision sometime in the spring.

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